By-laws for the Control of Hoardings

The by-laws contain several key definitions that determine their reach. An advertising device is defined broadly to include any advertisement, signboard, poster, sign, painted notice, electrical advertising device, or other illuminated sign. This covers nearly any visual communication intended to promote a product, service, or message, including digital signs and electric billboards, though the technology in 1931 was limited. The definition of near to is functional rather than metric: an advertisement is near to a road or land if it is plainly visible to ordinary eyesight when viewed from that road or land. This means an advertising device kilometres away might be caught if it is visible, depending on topography and weather. The term put up is also expansive: it includes making, erecting, putting up, or operating, as well as suffering or causing the device to be or to remain. This means an owner who fails to remove an existing sign that was lawfully erected before the by-laws came into effect is deemed to have put it up, and so is liable for non-compliance after the transitional period.

A local sign is an exception: it means an advertising device on land that shows only the name, trade, business, or calling of the person in actual occupation, including signs indicating that land is for sale or to let with the agent’s name and address. Local signs are partially exempt from the general advertising restrictions. The term trade, business, and calling is defined extremely broadly to include any trade, business, industry, calling, occupation, pursuit, pastime, operation, engagement, or activity, whether for profit or not. This means even a hobby club or non-profit organisation can be considered to have a trade or calling for the purpose of the by-laws. The responsible officer is the Town Planning Commissioner or their deputy, or the local authority officer charged with administering the by-laws. These officers have significant discretion: they decide whether a sign is a danger to traffic (section 4(1)), whether a device is dangerous or objectionable (section 4A), whether a repaint is required (section 5(2)), whether a sign is against public decency or morality (section 5(3)), whether a view should not be obstructed (section 8), and whether to certify a street as a future shopping area (section 7(2)). These are subjective judgments with no objective criteria stated in the source.

The concept of responsible person is extended by section 10: if the actual person who put up an advertising device is not known, any person interested or benefited, or capable of being interested or benefited by the advertisement, is deemed to have committed the breach. This creates a presumption of liability based on benefit rather than causation, placing the onus on the beneficiary to disprove knowledge or control. The by-laws do not specify a defence of due diligence or reasonable steps.

The by-laws directly affect any person who owns, occupies, or controls land in Western Australia on which an advertising device or hoarding is or could be erected. Person is defined to include any person, association of persons, firm, or body corporate, so the by-laws apply equally to individuals, partnerships, and companies. The practical burden falls most heavily on businesses that rely on outdoor advertising for visibility: retail shops, service stations, restaurants, hotels, shopping centres, real estate agents, and billboard operators. The requirement in section 9 that advertising hoardings near roads must be at least their own height from the building line and constructed to an approved ornamental design imposes significant upfront costs on billboard owners, effectively excluding some sites and increasing the cost of permissible advertising.

Landlords and property owners are also affected, because the definition of put up includes suffering or causing a device to remain. If a tenant erects a non-compliant sign and the landlord fails to act, the landlord may be deemed to have put it up. Section 4A provides that a person cannot have or keep a dangerous device on land owned or under his control after receiving a notice. Property owners must therefore monitor their tenants’ signage and face potential entry and removal at their own expense if they default.

The by-laws do not bind the Crown, government departments, government instrumentalities, or any State trading concern. This exemption includes entities such as Main Roads WA, public transport authorities, and government-owned utilities, which can place advertising without complying with the same construction, positioning, or content rules. Private competitors in the advertising market are thus at a disadvantage. The geographic exemption in section 13 means the by-laws (except by-law 4A) do not apply in the listed districts, which include the central business districts of Perth and Fremantle, the City of Subiaco, and many metropolitan local authorities. This creates a regulatory patchwork: a billboard in the City of Perth is not subject to the by-laws at all (except dangerous devices), while a billboard just outside the boundary in an unexcluded shire is fully regulated. Businesses operating across multiple local government areas must determine which regulations apply in each location.

Contractors and sign manufacturers are indirectly affected because clients will require conforming signs. Designers must ensure hoardings meet the local authority’s approved design and specification (section 9). Real estate agents are affected because their for-sale and to-let signs are local signs and thus allowed, but still subject to general requirements such as not being a danger to traffic (section 4).

The by-laws impose a number of specific duties on owners and users of advertising devices. Section 3 requires every advertising device and hoarding to be securely constructed and maintained to the satisfaction of the responsible officer. This is a continuing duty: the officer may inspect at any time and require improvements. Section 5 lists four duties: (1) maintain the device in a clean, tidy, and sightly condition; (2) repaint or renovate upon written notice from the responsible officer; (3) forthwith remove or obliterate the device if the responsible officer gives notice that it is against public decency or morality; and (4) if the device is over a road or footway, keep it free from dust or unsightly matter. The by-laws do not define “sightly,” “public decency,” or “morality,” leaving these entirely to officer discretion.

Section 4 imposes a prohibition on putting up signs in a position that creates a danger to traffic (in the opinion of the responsible officer) or that obstructs access to any window, door, or fire escape (with an exception for windows used for display of goods). Section 4A gives the responsible officer the power to serve notice on a person that an advertising device or hoarding on their land is dangerous to property or person, or otherwise objectionable. The recipient must remove the device within the time specified in the notice. If they default, the local authority or responsible officer may enter and remove the device at the owner’s expense, recoverable as a debt. There is no appeal mechanism stated in the source, and the officer’s opinion is not subject to objective criteria.

Section 6 prohibits putting up any swinging signboard or sign, or any advertising device made wholly or partly of flimsy material, so as to overhang a road or footway or local authority land. The responsible officer may cause removal without notice at the owner’s expense. Section 7 prohibits advertising near the Swan River and its tributaries (unless the device is inconspicuous when viewed from the river), and prohibits advertising in residential streets (except for the landowner’s name and trade). The responsible officer may certify a section of a street as a future shopping area, which lifts the residential street restriction. Section 8 prohibits putting up advertising near roads or local authority land that obstructs any view from a public highway which the responsible officer thinks should not be obstructed, and prohibits putting any advertising on roads or footways or on trees there. Section 9 requires that advertising hoardings near roads be at least their own height from the building line and constructed to an ornamental design approved by the local authority.

The main right of the regulated person is the ability to use local signs without restriction, and the ability to challenge a responsible officer’s opinion through a court as part of a prosecution, but the by-laws provide no administrative review mechanism. A person served with a notice under section 4A or section 5 could refuse and force the local authority to seek a criminal conviction, but the penalty is small and the risk of cost recovery for removal is high.

Section 11 makes any contravention of the by-laws, whether by act or omission, an offence. The penalty on conviction is not exceeding ten pounds, and for a continuing offence a daily penalty not exceeding two pounds during the continuance of the offence. These amounts are fixed from the 1931 legislation and have not been updated in the source. In real terms, the fine is now trivial, which may reduce deterrence but also means enforcement relies more on the power of removal and cost recovery than on criminal penalties. Local authorities and responsible officers can prosecute in any court of competent jurisdiction.

The real enforcement teeth are in sections 4A, 6, and 10. Section 4A allows the responsible officer to enter and remove dangerous or objectionable devices after notice and default, and recover expenses as a debt. Section 6 allows removal without notice of flimsy or hanging signs over roads, with the expense recoverable from the owner. Section 10 deems a person benefited by an advertising device to be liable if the actual person who put it up is not known. This is a reverse onus provision: the beneficiary must prove they did not commit the breach. The by-laws do not specify what evidence is sufficient to rebut the presumption.

The by-laws do not set time limits for when notice must be given or for how long the officer’s opinion remains valid. A device that was once safe could later be deemed dangerous without structural change. The officer’s power is not constrained by any requirement to consult the owner or to give reasons. There is no right of review or appeal stated in the source. A person aggrieved by a notice could seek declaratory relief or judicial review in the Supreme Court, but the legal costs would vastly exceed the penalty amounts, making practical challenge unlikely.

The Crown is not bound, so enforcement actions cannot be taken against government entities. The exemption covers not only the Crown itself but also any government department, instrumentality, or State trading concern. This means that a private business whose sign is deemed non-compliant by the responsible officer has no recourse against a government-owned billboard that is similarly placed but exempt.

The by-laws are made under the Planning and Development Act 2005 (WA) via the continued operation of instruments made under the Town Planning and Development Act 1928. The note in the source confirms this continuation under section 262 of the 2005 Act. The by-laws do not supersede local government planning schemes, building regulations, or the main Act itself. A person who obtains planning approval for an advertising device under the local planning scheme must still comply with these by-laws, unless the by-law provision is inconsistent with a later, more specific regulation. The by-laws focus on safety, amenity, and view obstruction, while modern planning schemes often have detailed sign controls, development application requirements, and heritage considerations. Compliance with both regimes is required.

The by-laws contain a specific exemption for districts listed in the schedule to section 13 (except for by-law 4A). This means that in those districts, other local laws or by-laws may apply to advertising. For example, the City of Perth may have its own sign by-laws under the Local Government Act or its town planning scheme. A sign that is lawful in the City of Perth could be illegal in an adjacent shire that is not excluded. The list in the schedule was amended many times between 1959 and 1964, and it is not stated whether later amendments added more districts or removed any. The compilation table shows no amendments after 1964, so the schedule is likely frozen in 1964. If a local government district has been renamed or merged since then, it is unclear whether the exemption continues.

The by-laws also interact with the Occupational Safety and Health Act or its successors: a sign that is dangerous may also be a breach of workplace safety duties. The by-laws allow the responsible officer to act independently of any safety regulator. The definition of put up includes operate, which may capture digital signs that change images. The by-laws do not address electrical safety, but the general construction requirement in section 3 would likely require compliance with electrical standards.

The by-laws do not create private rights of action. A person who suffers damage from a non-compliant sign cannot sue under these by-laws directly; they would rely on common law nuisance or negligence. The by-laws do not contain a limitation period for enforcement; the offences are continuing, so the time to prosecute may be extended.

The by-laws were first gazetted on 27 November 1931. By-law 2 was amended in the Gazette of 4 August 1933. By-law 4A was inserted by the same 1933 amendment. By-law 13 (the schedule of excluded districts) was inserted by the 1933 amendment and subsequently amended 16 times between 6 April 1959 and 3 July 1964, adding and possibly removing districts. The compilation table lists amendments in 1959 (five separate gazettals), 1961 (two), 1962 (three), 1963 (four), and 1964 (two). The districts added include the Shire of Gosnells (1959), the Shire of Kalgoorlie (1959), the Shire of Gascoyne-Minilya (1959), multiple other shires, and some named in groups in the final entry. The list in the schedule appears to have been built incrementally, but the compilation does not show the original or intermediate versions. The by-laws have not been amended since 1964, meaning they have been effectively static for over sixty years. The penalty amounts remain in pounds, though Australia decimalised in 1966. The by-laws have not been updated to reflect changes in local government boundaries, planning legislation, or modern advertising technology. The continued force under the Planning and Development Act 2005 preserves them as subordinate legislation, but their practical enforceability is questionable given their age and the lack of update. The compilation note states this is a compilation including amendments made by other written laws, but no further amendments are listed after 1964, suggesting the by-laws are considered spent or obsolete in many respects.

The source text contains no reference to any court cases, judgments, or legal proceedings involving these by-laws. The compilation table lists only gazettal and commencement dates without any annotations for court decisions. The by-laws are over ninety years old, and it is highly probable that there has been litigation interpreting terms like “near to,” “objectionable,” “dangerous,” or “trade, business, and calling.” However, without reference to such cases in the source, this deep dive cannot name any. The responsible officer must form opinions on several matters, and those opinions could be challenged in a prosecution. The vagueness of key terms (e.g., “sightly condition,” “public decency,” “otherwise objectionable”) would likely lead to arguments about certainty and delegated discretion. The by-laws were made under a 1928 Act and may have been the subject of challenges on the ground that they are unreasonable or ultra vires. The fact that the by-laws are still on the books suggests that they have not been struck down, but they may be rarely enforced except in clear cases of danger. The exemption for the Crown has not been tested in the context of competition law or equal treatment. Any litigation history not in the source cannot be included.

Several features of the by-laws can catch the unwary. The broad definition of put up includes “suffer or cause to be or to remain made, erected, put up, or operated.” This means a property owner who buys land with an existing non-conforming sign is deemed to have put it up if they do not remove it within the transitional period. There is no grandfathering for signs that were lawful when erected; the by-laws required all existing devices to be brought into compliance within twelve months of 1931 (or five years for 1930 licensed hoardings). Any sign that is not a local sign and that has not been updated since 1932 is likely unlawful, but the by-laws do not stipulate that the transitional period has expired; it was a one-time requirement that has passed. However, the continuing offence in section 11 means each day of non-compliance is a separate offence, so a sign that was not removed in 1932 remains in breach today.

The deemed liability under section 10 is a trap. If the actual person who put up an advertising device is not known, any person interested or benefited is held liable. This can include the tenant whose product is advertised, the landlord who collects rent, the advertising agency that arranged the placement, and the owner of the hoarding structure. The by-laws do not require the responsible officer to prove that the beneficiary knew of the contravention or had control. The burden shifts to the beneficiary to prove they are not the person who put it up. A business that benefits from a billboard placed by a third party without its knowledge could still be deemed liable.

The discretion of the responsible officer is broad and not subject to objective criteria. Opinions on danger, obstruction of view, decency, and morality are subjective. There is no right of appeal or review stated in the source. A person who receives a notice under section 4A or section 5 must either comply or face removal and cost recovery. The officer can also certify a street as a “future shopping area” under section 7(2) without any statutory criteria, effectively deciding which areas are exempt from the residential street ban.

The geographic scope is uneven. By-law 4A (dangerous devices) applies everywhere, but the rest of the by-laws do not apply in the districts listed in the schedule. If a local authority has been renamed or merged since 1964, it is unclear whether the exemption continues. The schedule includes the “Shire of Gascoyne , Minilya,” which is an historical name. Practitioners must verify the current local government area against the schedule as originally gazetted.

The by-laws do not require the responsible officer to give reasons for a decision or to consider alternatives. An officer could order removal of a sign that is merely unsightly in his opinion, with no cost-benefit analysis. The property owner bears the cost of removal and any loss of advertising revenue.

The penalty amounts are in pounds, which are no longer legal tender. This may render the fine unenforceable or require conversion to Australian dollars at an archaic rate. However, the power to recover expenses as a debt under section 4A(3) is not denominated in pounds and remains effective.

The by-laws do not address modern advertising technology such as electronic variable message signs, digital billboards, or projections. The definition of “advertising device” is broad enough to cover them, but the construction and safety requirements were designed for static signs. A digital sign might be considered to be “put up” each time it changes, though that is not stated.

The Crown exemption in section 12 is absolute. Government entities can place advertising that would otherwise be prohibited, including near the Swan River, in residential streets, or without meeting construction standards. Private competitors cannot.

Compliance with the by-laws requires a systematic approach. First, determine whether the by-laws apply in the relevant local government district. If the district is listed in the schedule to section 13, only by-law 4A (dangerous devices) applies. For districts not listed, all by-laws apply. The schedule is old and may not reflect current boundaries; confirm with the local authority or legal advice. For any advertising device or hoarding, the person who owns the land, occupies the land, or benefits from the advertising should consider the following steps.

1. Characterise the device. Determine whether it is an advertising device (broad definition) or a local sign (only shows the occupier’s name, trade, business, or calling, or a for-sale or to-let sign with agent details). Local signs are exempt from most prohibitions but still subject to safety and decency requirements.

2. Secure construction. Every advertising device and hoarding must be securely constructed and maintained to the satisfaction of the responsible officer. Engage a qualified structural engineer or sign contractor to ensure the device meets a standard that a responsible officer would likely accept. Document all construction details, specifications, and approvals from the local authority for hoardings under section 9.

3. Positioning and siting. Check that the device is not in a position that could create a traffic hazard (in the opinion of the responsible officer). Avoid obstructing access to windows, doors, or fire escapes. Do not place any sign over a road or footway that swings or is made of flimsy material. For hoardings near roads, ensure the hoarding is at least its own height from the building line. For signs near the Swan River or residential streets, determine whether they are inconspicuous from the river or whether the street is zoned commercial or a future shopping area. Obtain written confirmation from the responsible officer if possible.

4. Maintenance and content. Maintain the device in a clean, tidy, and sightly condition. If the responsible officer issues a written notice to repaint or renovate, comply within the time stated. If the officer claims the device is against public decency or morality, remove or obliterate it immediately. For devices over a road, keep them free from dust and unsightly matter.

5. Dangerous devices. If served with a notice under by-law 4A, remove the device within the specified time. Do not delay, as the local authority can enter and remove at your expense. If you believe the notice is unreasonable, you may challenge it, but the cost of resisting may exceed the cost of removal.

6. Records and indemnities. Given the deemed liability provision in section 10, any person who benefits from an advertising device should obtain indemnities from the actual sign operator or contractor. Keep records of who erected the sign, when, and under what approvals.

7. Annual review. Since the responsible officer’s opinion can change over time, conduct periodic inspections of all advertising devices on your land. Consider engaging a sign consultant to assess whether any device could be deemed dangerous, objectionable, or unsightly.

8. Government entities. If you are a government entity, you are exempt. However, voluntary compliance is advisable to avoid public criticism. If you are a private entity competing with a government sign, you cannot use the by-laws to challenge it, as the Crown is not bound.

9. Legal advice. Due to the age and ambiguity of the by-laws, seek legal advice before installing any large or permanent advertising structure, especially near sensitive areas or in districts with overlapping local laws. The small penalty does not mean there is no risk: the cost of forced removal could be significant.

10. Monitor local government amendments. The by-laws are static, but local planning schemes may impose additional controls. Compliance with the by-laws does not guarantee compliance with the local scheme.